Citation Nr: 0526262
Decision Date: 09/23/05 Archive Date: 10/05/05
DOCKET NO. 03-27 443 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUE
Entitlement to an effective date prior to June 4, 2003, for a
total rating for compensation purposes based upon individual
unemployability.
REPRESENTATION
Appellant represented by: Antonio E. Bendezu, Attorney-
at-law
ATTORNEY FOR THE BOARD
J. W. Loeb
INTRODUCTION
The veteran served on active military duty from November 1941
to October 1945. This case was remanded by the Board of
Veterans Appeals (the Board) in April 2005 to the Department
of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska
(RO) for additional action. The case is again before the
Board for adjudication.
FINDINGS OF FACT
1. An unsigned claim for a total rating based on individual
unemployability due to service-connected disability (TDIU)
was received by VA on August 26, 2002.
2. A signed claim for TDIU was received by VA on February
28, 2003.
3. The initial evidence of unemployability due to service-
connected disabilities was on VA examinations in June 2003.
CONCLUSION OF LAW
The criteria for an effective date prior to June 4, 2003, for
TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002); 38
C.F.R. § 3.400 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initial Considerations
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000 (VCAA). See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002). Regulations implementing the VCAA have been
enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2004).
VA has a duty to notify the claimant of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi,
16 Vet. App. 183 (2002). After having carefully reviewed the
record on appeal, the Board has concluded that the notice
requirements of the VCAA have been satisfied with respect to
the issue decided herein.
In April 2005, the RO sent the veteran a letter, with a copy
to his representative, in which he was informed of the
requirements needed to establish entitlement to TDIU. See
VAOPGCPREC 8-03; 69 Fed. Reg. 25180 (2004).
In accordance with the requirements of the VCAA, the letter
informed the veteran what evidence and information he was
responsible for and the evidence that was considered VA's
responsibility. The letter explained that VA would make
reasonable efforts to help him get evidence such as medical
records, employment records, etc., but that he was
responsible for providing sufficient information to VA to
identify the custodian of any records. No additional
relevant evidence was received from the veteran. There is no
indication in the record that additional evidence relevant to
the issue decided herein is available and not part of the
claims file. Based on this record, the Board finds that VA's
duty to notify has been satisfied.
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. The VCAA also requires VA
to provide a medical examination when such an examination is
necessary to make a decision on the claim. 38 U.S.C.A.
§ 5103A(d); 38 C.F.R. § 3.159. However, because the issue in
this case involves the issue of entitlement to TDIU prior to
June 2003, a current examination is not relevant. The Board
concludes that all available evidence that is pertinent to
the claim decided herein has been obtained and that there is
sufficient evidence on file on which to make a decision.
There is no indication that additional relevant evidence
exists, and the veteran has not pointed to any additional
information that needs to be added to his VA claims folder
with respect to the issue decided herein.
The veteran has been given ample opportunity to present
evidence and argument in support of his claim. The Board
additionally finds that general due process considerations
have been complied with by VA. See 38 C.F.R. § 3.103 (2004).
Finally, to the extent that VA has failed to fulfill any duty
to notify and assist the veteran, the Board finds that error
to be harmless. Of course, an error is not harmless when it
"reasonably affect(s) the outcome of the case." ATD Corp.
v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this
case, however, as there is no evidence that any failure on
the part of VA to further comply with the VCAA reasonably
affects the outcome of this case, the Board finds that any
such failure is harmless. See also Mayfield v. Nicholson, 19
Vet. App. 103 (2005).
Factual Background
The evidence on file consists of VA and private treatment
records dated from February 1999 to July 2004, VA
examinations reports dated in April 2002 and June 2003, and
statements by and on behalf of the veteran.
An April 2002 rating decision granted entitlement to service
connection for bilateral hearing loss, which was assigned a
20 percent evaluation, and for tinnitus, which was assigned a
10 percent evaluation; the awards were effective November 3,
2001.
A May 2002 rating decision granted entitlement to service
connection for residuals of a fractured patella, degenerative
joint disease of the left knee, which was assigned a 10
percent evaluation effective November 3, 2001.
A July 2003 rating decision granted entitlement to service
connection for PTSD, which was assigned a 50 percent
evaluation effective June 4, 2003; TDIU and Dependents'
Educational Assistance were also awarded effective June 4,
2003.
Pertinent Law and Regulations
A claim for TDIU is essentially a claim for an increased
rating. See Hazan v. Gober, 10 Vet. App. 511 (1997). The
general rule with respect to the effective date of an award
of increased compensation is that the effective date of such
award "shall not be earlier than the date of receipt of
application therefor." 38 U.S.C.A. § 5110(a). This
statutory provision is implemented by the regulation, which
provides that the effective date for an award of increased
compensation will be the date of receipt of claim or the date
entitlement arose, whichever is later. 38 C.F.R. §
3.400(o)(1). "Date of receipt" generally means the date on
which a claim, information, or evidence was received by VA.
38 C.F.R. § 3.1(r) (2004).
An exception to that general rule applies under circumstances
where evidence demonstrates that a factually ascertainable
increase in disability occurred within the one-year period
preceding the date of receipt of a claim for increased
compensation. In that circumstance, the law provides that
the effective date of the award "shall be the earliest date
as of which it is ascertainable that an increase in
disability had occurred, if application is received within
one year from such date." 38 U.S.C.A. § 5110(b)(2); 38
C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App.
125, 126 (1997); VAOPGCPREC 12-98; 63 Fed. Reg. 56704 (1998).
A claim or application for benefits is defined as a formal or
informal communication in writing requesting a determination
of entitlement or evidencing a belief in entitlement, to a
benefit. 38 C.F.R. § 3.1(p). Any communication or action,
indicating an intent to apply for one or more benefits under
the laws administered by VA may be considered an informal
claim. However, the informal claim must identify the benefit
sought. Upon receipt of an informal claim, if a formal claim
has not been filed, an application form will be forwarded to
the claimant for execution. If received within one year from
the date it was sent to the claimant, it will be considered
filed as of the date of receipt of the informal claim. 38
C.F.R. § 3.155 (2004).
The United States Court of Appeals for Veterans Claims
(Court) has made it clear that the question of when an
increase in disability is factually ascertainable is answered
by the Board based on the evidence in a veteran's VA claims
folder. "Evidence in a claimant's file which demonstrates
that an increase in disability was 'ascertainable' up to one
year prior to the claimant's submission of a 'claim' for VA
compensation should be dispositive on the question of an
effective date for any award that ensues." Quarles v.
Derwinski, 3 Vet. App. 129, 135 (1992).
Total disability ratings for compensation may be assigned
where the schedular rating for the service-connected
disability or disabilities is less than 100 percent when it
is found that the service-connected disability is sufficient
to produce unemployability without regard to advancing age.
38 C.F.R. §§ 3.340, 3.341, 4.16 (2004).
Analysis
It has been contended on behalf of the veteran that TDIU
should be granted effective in August 2002 because that is
the original date of submission of VA Form 21-8940 claiming
TDIU.
As noted above, a claim for TDIU is essentially a claim for
an increased rating. Consequently, the effective date of an
award of increased compensation is normally the later of the
date of receipt of claim or the date entitlement arose,
unless there is evidence demonstrating that a factually
ascertainable increase in disability occurred within the one-
year period preceding the date of receipt of a claim.
38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.
The veteran originally filed a claim for entitlement to
service connection for left knee disability, hearing loss,
and tinnitus in November 2001, and an April 2002 rating
decision granted entitlement to service connection for
bilateral hearing loss, which was assigned a 20 percent
evaluation, and for tinnitus, which was assigned a 10 percent
evaluation; the awards were effective November 3, 2001. The
claim for service connection for left knee disability was
deferred pending VA examination, which was conducted in April
2002.
A May 2002 rating decision granted entitlement to service
connection for residuals of a fractured patella, degenerative
joint disease of the left knee, which was
assigned a 10 percent evaluation effective November 3, 2001.
The veteran was notified of the award in June 2002.
An unsigned and undated VA Form 21-8940, Veterans Application
for Increased Compensation Based on Unemployability, was
received by VA on August 26, 2002. The Board finds that the
incomplete application for TDIU constituted an informal
claim.
The Court has held that when an applicant fails to provide
critical elements of the information requested on the form,
and VA returns the form to the applicant requesting that he
provide the missing items, the applicant will not have
satisfied the requirements of § 5101(a), until he submits the
requested information. Fleshman v. Brown, 9 Vet. App. 548
(1996); aff'd, 138 F.3d 1429 (Fed. Cir. 1998); cert. denied,
119 S. Ct. 371 (1999).
Where a claimant refers to a specific source of evidence that
could make his claim plausible, VA has a duty to inform him
of the necessity to submit that evidence to complete his
application for benefits. See Epps v. Brown, 9 Vet. App.
341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d 1464 (Fed.
Cir. 1997). Pursuant to this "duty to inform" the veteran of
the necessary steps required to complete his application, the
veteran was notified in February 2003 that he should
complete, sign, and return the application to VA, and the
completed application was received by VA on February 28,
2003, which means that a completed application for VA
compensation was received within one year of receipt of the
informal claim for benefits.
As the completed and signed application for compensation
(formal claim) was received within one year of the veteran's
August 2002 informal claim for benefits, the appropriate date
of claim for TDIU is August 26, 2002. See Fleshman v. Brown,
9 Vet. App. 548 (1996).
Because the veteran's current claim for benefits was received
by VA on August 26, 2002, an effective date prior to August
26, 2002 for TDIU would be warranted if there is evidence of
unemployability within a year prior thereto. See 38 U.S.C.A.
§ 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Prior to August 26,
2002, service connection was in effect for hearing loss,
tinnitus, and left knee disability. While there are some
examination and treatment records on file dated between
August 2001 and August 2002, this evidence does not show that
the veteran was unemployable due solely to his service-
connected disabilities. Moreover, the fact that he was
unemployed does not automatically mean that he was
unemployable.
VA audiological evaluation in January 2002 revealed results
that were described as a mild sloping to profound high
frequency sensorineural hearing loss bilaterally with
complaints of tinnitus. The veteran's left knee disability
was described as mild on VA examination in April 2002. The
Board would note that the medical evidence prior to August
2002 shows nonservice-connected disabilities, including heart
disease. While the medical evidence between August 2001 and
August 2002 does show some interference with employability
due to the veteran's service-connected hearing loss,
tinnitus, and left knee disorder, the evidence does not show
that these disorders, by themselves, prevented substantially
gainful employment. Consequently, medical evidence of
unemployability due to service-connected disabilities was not
shown within the year prior to receipt of the claim on August
26, 2002.
The first medical evidence of record that indicates
unemployability due to service-connected disorders was not
until VA examinations in June 2003, when a VA examiner found
PTSD, with moderate symptomatology. The examiner noted that
the veteran's PTSD contributed significantly to his
unemployability but, by itself, did not cause him to be
unemployable. It was reported on VA general evaluation on
June 4, 2003 that the veteran would be unable to do any
vigorous activity with his left knee and would need
considerable restrictions on sedentary activity because of
the need for frequent repositioning. It was also noted that
the veteran would have considerable difficulty, even doing
sedentary work, dealing with the public due to his hearing
loss and tinnitus. Accordingly, as the effective date for
the assignment of TDIU is whichever is later between the date
of claim, which is August 26, 2002, and the date entitlement
is shown, which is the date of the VA examinations in June
2003, an effective date prior to June 4, 2003 is not
warranted.
Finally, in reaching this decision the Board considered the
doctrine of reasonable doubt, however, as the preponderance
of the evidence is against the veteran's claim, the doctrine
is not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
An effective date prior to June 4, 2003, for TDIU is denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs